This is a special status allowing the company to support visa applications from non EU nationals, but with this status comes additional responsibilities. Each licensed sponsor is required to comply with a set of duties set out in the Home Office guidance, and if they fall short of these standards the ramifications can be severe.
Licensed sponsors can receive Home Office visits at any stage, and that's exactly what happened to one company just before Christmas. Unfortunately the visit didn't go well and they received a letter stating that their Licence had been suspended by the Home Office, and could be revoked in the near future. This would have led to the loss of their ability to bring in new staff from outside the EU, and it also would have led to their existing staff with Tier 2 visas being forced to find a new employer or leave the UK.
This is every licensed sponsor's worst nightmare, and it is becoming increasingly common as the Home Office increase the number of audits. However, not all is lost if a Licence is suspended as there is a short period during which submissions can be made.
We have helped a number of clients retain their Licence even after receiving these letters and here are our top tips:
1) Double check the reasons given by the Home Office
The Sponsor Guidance is extremely complicated, and sometimes even the Home Office get it wrong. For example, in one case the Sponsor Licence letter referred to a section about recruitment records from the current guidance but it applied it to a recruitment exercise that took place several years ago.
We reviewed the historic guidance and found that, at the time the recruitment exercise took place, no such rule existed. We were then able to argue to the Home Office that it was unreasonable to retrospectively apply this rule since it could not be complied with. Fortunately, the Home Office agreed with our assessment and withdrew the suspension.
2) Look for misunderstandings
In another case, a client came to us with a suspension letter which they didn't understand. They said that the letter didn't make sense in terms of the answers they had given to the Home Office official and there were several key inaccuracies.
When we discussed the letter with our client it became clear that there had been several misunderstandings during the course of the Home Office visit, and these had been material to the Home Office's decision.
In this case, we used the 20 working day period for submissions, to gather documents showing the accurate position. We then produced detailed submissions to the Home Office explaining the misunderstandings and what the correct position was. Once this had been explained to the Home Office they were content that the company was complying with their sponsor obligations and withdrew the suspension.
Misunderstandings can arise for several reasons, but the most common reason is that staff are not prepared for a Home Office visit. This can be avoided by carrying out regular internal audits to familiarise staff with the process.
3) Reflect on the issues identified by the Home Office
Unfortunately, not every issue identified in an audit can be explained away. Often audits identify serious issues that need to be addressed. It is important that, when dealing with a Licence suspension, you take a moment to step back and consider:
- Why has a particular issue arisen?;
- What can you do to minimise this error?; and
- What can you do to avoid the issue in future?
For example, in a recent case one of the issues raised in the suspension letter was that our client had allegedly failed to monitor the visa expiry dates of non UK nationals. The Home Office believed this meant there was a risk of illegal working taking place, and this justified enforcement action.
Initially our client was adamant they had done nothing wrong, all staff had valid visas and no illegal working had taken place. However, we explained the Home Office can take action even where no actual breach has taken place as long as they are satisfied there is a risk of a breach. With this in mind we reviewed the client's internal processes and identified gaps in their system.
We then took some simple steps to plug these gaps including:
- Keeping a centralised record of visa expiry dates;
- Having the HR team review this record once a month; and
- Entering reminders about visa expiry dates in the outlook calendars of several key staff.
These steps were enough to persuade the Home Office that the risk of a breach had been removed, and our client's Licence was restored. Had our client simply responded to the Home Office letter by stating that all staff had the right to work, there is no guarantee this would have received a positive outcome.
Summary
Many of the issues that come up during Home Office visits can be avoided by carrying out your own internal audits. We regularly audit clients to help identify compliance issues and prepare staff for the possibility of a Home Office visit.
Where a visit does result in a Licence suspension letter, it is important to act promptly and give detailed consideration to every issue raised by the Home Office. It is possible to have a Licence reinstated, but it requires a great deal of work.
If you need assistance with your sponsor compliance duties, or you have received a Licence suspension letter, please get in touch to find out how we can help.
